New Doctrines Of Environmental Law And Development Of International Law

Environmental law is new and dynamic among law family. In its recent years'development there emerge many doctrines and concepts, which challenge and shake the traditional ones. This thesis identifies and selects dozens of important and influential ones to analyze and explore in terms of their meaning, significance and impacts to international law. This thesis is divided into four parts: enhancement of position of ecological issue; changes of governing style and forms of law; development of environmental liability; globalized international environmental law and transition of international law. There are eight chapters in the four parts of this thesis, each part containing two chapters.Chapter 1 deals with Ecological Modernization. Ecological modernization adds a new dimension to modernization. Ecological health and safety become important content and indication of modernization. Natural resource and environmental pollution become part of economic model and planning. Ecological Modernization theory needs reconstruction of historical materialism in terms of adding nature as a horizon. Ecological modernization theory derives from reflection on incompact between economic growth and environmental pollution, and the path to its solution includes: harmonization between economic goals and environmental protection, protection with technology and using market instrument in priority. China's goals and paths to ecological modernization remain undecided. The extreme view on the ecological issue is that existing international environmental law is not good enough to save the earth or continue the civilization, but environmental revolution and civilization transition are needed.Chapter 2 is ecologist vs. anthropologist. In anthropologist view, value for human beings is the only value, other species and the nature are only valuable as instruments to human beings. In the ecologists'view, human are morally and in ethics terms responsible for non-human existence. It is necessary for the improvement of human's morality to treat animals and other living things kindly, to respect life, and not to treat animals cruelly. However, it will be difficulty to operate for these kinds of views in judicial practice, for example, in the lawsuits concerning animal rights, it will be legally difficulty for human being agent on behalf of the animal welfare is the area going farther than others in terms of doctrines and rulesAlmost all the documents relating to the international protection of nature and environment are anthropologist instead of ecologist, for example, the Rio Declaration says that human are in the center of sustainable development. It is said that we need to construct China style environmental ethics, since we now hang on the conclusion and paradigms of the Western environmental ethics which in some ways are not in our benefits.Chapter 3 is environmental governance and public participation. International governance is by binding global mechanisms to solve global problems as conflicts, ecological degradation, human rights, emigrant, drugs, smuggling and spreading diseases in maintaining international political and economic order.. The UN system, WTO and national governments are the key elements in governance, social campaigns, non-governmental international organizations and regional organizations are important as well. Governance implies a more cosmopolitan international society, instead of a society merely composed of states. In environmental affairs general public have rights of access to information, participation in decision-making, and access to justice. These are the rapidly developed part of environmental law in new conditions and a part of environmental governance. States should recognize and support environmental organizations, assist public in realization of the three rights by proper legislation, administration and implementing law and by environmental education,Chapter 4 is Soft Law as Sources of International Law. Many social problems offset the orthodoxy of state and call for soft laws replacing hard laws. Soft law reflects the impacts of the Western post-modernism ideas, and its political legitimacy lays on consultant democracy guided by rationality. In recent two decades, soft law has emerged in great numbers in all fields of law, but its application is mainly in international law. using soft law has some advantages, such as avoiding domestic approving procedures, providing law-making procedures for international organizations, easier to be amended than treaty, and easier to reach agreement so it can be first step for a binding treaty.. Soft law can make states pressed and responsible. Through soft law, both developed and developing countries accept and apply principles otherwise they would not agree. In this sense, soft law made contributions to the development of national and international law, for the harmonization of environmental laws and standards and for the setting up of legal order in rapidly developing and uncertainty international environmental law.Chapter 5 is about international environmental liability and its private liability Tendency. The unfeasibility of conviction of state liability grew as international civil activities appeared more frequently and laws and practice in dealing with international environmental accidents developed, so conviction for private liability prevailed over state liability. Since 1978, the International Law Committee (ILC) has been engaged in compiling the state liability, the theme for this part is called state liability caused by activities not prohibited by international law". ILC's 2002 report pointed out clearly the tendency of private liability instead of state one, and constructed the liability institute with the focus on the allocation of losses. Losses and therefore liabilities should be allocated among operator of the activities, operator of the business, managers and beneficiaries of the activities, and supported by funds and funding mechanisms.Chapter 6 is on the compensation to environment per se. Whether harm to environment and nature per se can be compensated is a unique question of environmental law. An analysis to Amoco Cardiz Case tells us that the objects and scope of compensation developed gradually. Only personal loss and property loss can be compensated at first, then in Amoco Cardiz Case, anticipated economic loss, business profit loss for one year also can be compensated. Because of Exxon Valdez accident, the US Oil Pollution Act 1990 provides that people are liable for cost of clean up pollution, loss of natural resources, loss of personal and real property and economic and profit losses incurred from personal and real property loss, and most significantly, the costs of restore damaged natural resources should be compensated.Such provision is significant in many terms, including: 1, it legalizes the value of environment and nature; it provides legal basis and rules for environment and nature per se to claim damages; it makes people to carry their activities wisely in order not to harm nature and environment, otherwise they will be punished and economically disadvantaged. Once there emerges environmental accident, people can behave actively to reduce the loss of environment so as to reduce their own liability. By this provision, people have moral baseline to discipline themselves not to harm environment, and compensation to environment per se can be used to cover natural loss and to restore harmed environment. Thus, the function of environmental law has been realized.Chapter 7 is in the title of"globalization of environmental issues and globalized international environmental law". The concept of protecting the global environment and nature is a generalized and rational concept of mankind, and is basis for global legal order. International environmental law is the most obvious and most in-depth in responding to the globalization and its changes of law. International environmental law since De Rio in 1992 has protected environment at the global, regional, transboundary and state level., and precautionary approach has been adopted for some highly risky environmental issues. Prior to De Rio, international environmental law mainly dealt with incident transboundary pollutions, and ways to address the issue were mainly by diplomatic negotiation and mediation. There were almost no rules to be followed. The treaties aimed at regional and special problems in certain areas such as oil pollution by ships. Under the pressure and impacts of international environmental law, environmental laws of various states have converged, public participation in environmental affairs, environmental impacts assessment, lawsuit for public interests. Emphasizing NGO's roles etc., have become basic principles and institutes in many states'domestic environmental law. However, there are three critiques to present international environmental law, that is, in character it is mainly soft law, in scope it is not systematic; in compliance and implementation it is weak.Chapter 8 is"International environmental law's calling for transition of international law. International law has experienced three developing periods since the cold war. In cold war period, its aim was peaceful existence, in mediation period, emphasis lies on cooperation, in post-cold war period, protection of human rights and environment to enhance mankind's morality and progress is emphasized. The present international society's hetereity and risks are strengthened, conflicts and disparity between developed and developing countries increasingly grow, international law must address the problems in a balanced way. However, its legislation remains difficulty as before. Basis of international environmental law has been changed, and the present co-operation model is not good enough to solve the global environmental problems. In the concept of global common welfare, the characteristics of international law is no more cooperation, but environmental trust, a concern towards global common interests. The doctrine, institute and organization of global environmental management are called for , therefore the transition of international law.